2007-543-Order No. 2007-111 Recorded 5/23/2007DESCHUTES COUNTY OFFICIAL RECORDS rr 1^07543
NANCY BLANKENSHIP, COUNTY CLERK lid V
1111 II'y IIIIIIIIIIIIIIE
1111 I III
05/23/2007
04:46:35
PA
2007-543
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Deschutes County Clerk
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Re-recorded to correct [give reason]
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DESCHUTES COUNTY OFFICIAL RECORDS 1001.19344
REVIE D NANCY BLANKENSHIP, COUNTY CLERK
EGAL C UIVSEL NO FEE
II 111111 111111111111111111111111 II 11111111111 III III
00'3'30280200700283440080083 05/23/2007 04;16;20 PM
D-M37 Cntmi Stnm3 PO
This is a no fee document
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Leslie Harris to Use the * ORDER NO. 2007-111
Subject Property as Allowed When He Acquired
the Property
WHEREAS, On November 2, 2004, the voters of the State of Oregon approved Ballot Measure 37
which added provisions to Oregon Revised Statutes (ORS) Chapter 197 to require, under certain circumstances,
payment of just compensation to landowners if a government land use regulation reduces property value. In lieu
of just compensation, Ballot Measure 37 authorizes the governing body of a local government to modify,
remove or not apply the land use regulation, and
WHEREAS, Leslie Harris made a timely demand for compensation under Measure 37 for a reduction in
value to his property at Map 20-15-09, TL 1100, Millican, Oregon due to regulations which took effect after he
acquired this property, and
WHEREAS, Section 8 of Measure 37 authorizes the Board, as the governing body responsible for
adoption and enforcement of County regulations, to not apply the identified land use regulation that restricts the
owner's use and reduces the value of the property in lieu of payment of compensation; and
WHEREAS, the Board has received the report and recommendation of the County Administrator as
required by DCC 14.10.090; and
WHEREAS, the Board has considered the Administrator's report and the evidence presented by the
parties at a Board meeting as required by DCC 14.10.090; and
WHEREAS, the Board makes the following findings of facts and conclusions;
1. On December 1, 2006, Leslie Harris filed a Measure 37 claim with the Community
Development Department.
2. The property is located at Map 20-15-09, TL 1100, Millican, Oregon and is within Deschutes
County.
3. The County Administrator has recommended that the regulations for the subject property that
were not already in effect until after November 27, 1969, not be enforced in lieu of payment of
just compensation to Claimant. The Administrator's report is attached and incorporated by
reference into this Order as Exhibit "A."
4. The Board concurs with the Administrator's report that Leslie Harris is the present owner of the
subject property described in Exhibit "B," having acquired an interest in it and continuously
owned it since November 27, 1969. The County finds and concludes as set forth below.
PAGE 1 of 3- ORDER No. 2007-111 (05/21/07)
5. The Board concurs with the Administrator's report that the current zoning regulations, if applied
to the subject property, would not permit a division of the subject property. The current
regulations are land use regulations which are not exempt from Measure 37 claims.
6. The Board concurs with the Administrator's report that an application for a division of the
subject property would be denied if the current regulations were applied. Therefore, such an
application to determine enforcement of the current zoning to the Claimants' property would be
futile.
7. The Board concurs with the Administrator's report that there is no evidence which demonstrates
that the current procedural regulations for a land use permit have reduced the value of the
subject property.
8. The Board concurs with the Administrator's report that division of the property may be feasible.
However, these matters can and would be evaluated in connection with a permit application.
Despite the lack of a precise amount of reduction in value, the loss of the ability to divide the
subject property would be a substantial amount of reduction in fair market value if the
regulations at the time Claimant acquired the property allowed such a use; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. The Board hereby determines, based on these findings, conclusions, and the Administrator's
report in Exhibit "A," that the claim is eligible under DCC 14.10.100.
Section 2. The Board hereby elects to not apply nonexempt County land use regulations, to the subject
property described in Exhibit "B" in lieu of payment of just compensation under Ballot Measure 37. Claimant
may apply for a use of the subject property consistent with the substantive land use regulations in effect at the
time he first acquired an interest in the property. That land use shall be permitted if the subject property fully
complies with all substantive land use regulations in effect on November 27, 1969. The Community
Development Director is hereby authorized to determine the effects that any exempt land use regulations, as
listed in ORS 197.352(3)(A)-(D), would have on Claimants' proposed use. As used in this section, "land use
regulations" refer to those listed in ORS 197.352(11) (B). The Board does not waive current procedural
regulations. Procedural regulations are those which set forth the system, method, or way of processing land use
applications, such as the requirement to submit a certain form. Substantive land use regulations which are
waived are those which regulate the actual use of the land, including those listed in ORS 197.352(11)(B), and
including regulations such as minimum lot sizes, density restrictions, setbacks not protecting public safety, and
height limits. The Board does not waive exempt regulations which include those described in ORS 197.352(3),
but the provisions of ORS 197.352(3)(E) is subject to this Board's order as to dates of acquisition for Leslie
Harris.
Section 3. To the extent that any law, order, deed, agreement or other legally enforceable public or
private requirement provides that the subject property may not be used without a permit, license, or other form
of authorization or consent, this order does not authorize the use of the subject property unless the Claimant first
obtains that permit, license, or other form of authorization or consent.
Section 4. This Order is a waiver of a non-exempt County land use regulation from a property
determined to be claim eligible as defined in DCC 14.10.020(0).
Section 5. A STATE OF OREGON WAIVER MAY BE REQUIRED FOR THE DEVELOPMENT OR
USE OF THE SUBJECT PROPERTY. ALTHOUGH THE COUNTY WILL ACCEPT AND PROCESS
SUBSEQUENT LAND USE APPLICATIONS ASSOCIATED WITH THE SUBJECT PROPERTY,
APPROVAL MAY NOT BE GRANTED WITHOUT A VALID WAIVER FROM THE STATE PERTAINING
PAGE 2 of 3- ORDER No. 2007-111 (05/21/07)
TO STATE REGULATIONS WHICH WOULD OTHERWISE PRECLUDE THE PROPOSED LAND USE.
THIS WAIVER APPLIES ONLY TO THE LOCAL REGULATIONS SPECIFIED ABOVE. DESCHUTES
COUNTY LACKS THE AUTHORITY TO WAIVE ANY STATE REGULATIONS OR LAWS. STATE
LAWS AND REGULATIONS MAY APPLY TO THE USE OF THE PROPERTY DESCRIBED HEREIN,
AND A WAIVER OF SUCH LAWS AND REGULATIONS MUST BE SEPARATELY OBTAINED BY THE
OWNERS FROM THE STATE OF OREGON.
Section 6. This Order shall be recorded in the Deschutes County Deed Records together with portions
from the deed or other instrument in Exhibits A and B sufficient to identify the subject property for recording
purposes.
DATED this Z/ day of May, 2007.
ATTEST:
Recording Secretary
PACE 3 of 3- ORDER No. 2007-111 (05/21/07)
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
Deschutes County Department of Administrative Services
1300 NW Wall St., Ste. 200, Bend, OR 97701-1947
(541) 388-6570 Fax (541) 385-3202 - vwvw.deschutes.org
TO: Board of County Commissioners
DATE: May 21, 2007
From: David Kanner, County Administrator
RE: Measure 37 Claim - Leslie Harris (Claimant)
Map 20-15-09, TL 1100, Millican, OR
Introduction
The County processed the initial Measure 37 claims using its brief claim form, evaluating the submission,
and preparing this report and recommendation under DCC 14.10, the Measure 37 ordinance. The
County's claims process recognizes that less precise evidence of value may be sufficient to evaluate
claims, since there are currently no County funds available for payment of compensation. Also, the
ordinance provides further opportunities for affected neighbors to present evidence and testimony at the
Board meeting when these claims are considered.
This report and recommendation is intended to be a summary and evaluation of evidence in the record.
The report may be attached to the Board's Order which decides Measure 37 claims, as a factual basis for
the Order. Any factual changes or additions to this report from testimony or other evidence can be made
part of the Board's Order. Claimant and affected parties have the opportunity to rebut this Report and
provide additional relevant evidence to the Board. Also, under the County's process, claimant must
provide evidence that the desired use of the property, which may be allowed by a waiver of County
regulations is feasible, i.e., not prevented by physical, utility or other development limitations of the site.
Report and Recommendation - DCC 14.10.090
This is my report and recommendation on this Measure 37 claim received on December 1, 2006, when
Measure 37 was in lawful effect. Claimant has paid the filing fee and submitted the County's official
demand form. The property consists of one lot with approximately ten acres in one tax lot. The current
zoning is EFU-HR/WA. The Claimant's desired use is to divide the property into two parcels, currently
restricted by County land use regulations. Claimant alleges a reduction in value of approximately
Page 1 of 4 - Exhibit A - Order No. 2007-111
$200,000 due to the inability to divide as desired. The following is an analysis of the evidence in the
record on the elements of this Measure 37 claim.
Current Owner - Leslie Harris is the owner of the property comprising this claim: 20-15-09, Tax lot 1100
located at Millican. Claimant submitted a copy of a deed, dated November 27, 1969, showing him as a
grantee. He is listed on County records as an owner and has owned an interest in the property
continuously.
Owner Date of Acquisition - November 27, 1969
The date of acquisition by the current owner is the relevant date for Board consideration of waivers under
section (8) of Measure 37. The compensation section of Measure 37, section (6), uses the acquisition
date of a family member to determine the extent of reduction in value for compensation. Since the County
has no funds budgeted for payment of compensation, waivers that are issued by the County are limited
by section (8) of Measure 37 to County land use regulations that were adopted after the later acquisition
date of the current owner. If a waiver is granted as to County land use regulations which were adopted
after the current owner's acquisition date, no compensation is due, even if the prior family member held
the property for many years. While this may seem inconsistent, the measure was, evidently, written to
encourage waivers of local and state land use regulations. The first date for which there is documentation
showing Leslie Harris obtained an interest in the property is November 27, 1969.
Restrictive Regulation - Zoning Regulations.
Under the terms of the ordinance, the claimant must identify County land use regulations that prevent the
claimant from using the property in a way that he otherwise could have used the property at the time the
property was acquired, and thus reduce the value of the claimant's property. The Claimant has not
identified specific provisions of the county's ordinance but has alleged that all County land use regulations
were adopted after the acquisition date and have reduced the value of his property by prohibiting his
ability to divide the property into smaller lots.
There were no county land use regulations in effect at the time of acquisition. Regulations were adopted
after the acquisition date of 1969 and would have the effect of restricting the division of the property.
While the county would need to evaluate any land use application that may be submitted pursuant to
regulations in effect at the time Claimant first acquired an interest in the property, it appears that in theory,
based upon regulations in effect in 1969, that a land division may have been permitted at that time.
Page 2 of 4 - Exhibit A - Order No. 2007-111
Enforcement of County Regulation - futile DCC 14.10.040(G).
Measure 37 requires that an ordinance which restricts the current owner's use be "enforced" against
them. Claimant has not have applied for a division resulting in the current zoning being enforced on the
subject property. Claimant has demonstrated that submitting an application for such a land division would
be futile. This Report confirms that such an application for the desired subdivision would violate the
current requirements and be denied. Therefore, the intent of DCC 14.10.040(G) has been met for this
claim.
Reduction in Value - $200,000 alleged on Claim Form
The ordinance requires that the Claimant provide evidence of the amount of the claim in alleged reduction
in the fair market value of the property resulting from the enforcement of the County's land use regulation.
• Claimant has asserted that a land division would be approved.
• Claimants' property is not located along a public road so access may be an issue.
• Other public utilities may be available to the property.
• Claimant has not submitted an appraisal, or opinions from real estate professionals in an attempt
to show the diminution in value based upon limitations on land division of the property.
• Claimant's alleged reduction in value appears to be based upon the assumption that lots created
by dividing the property are fully marketable and useable by others for development. Referring to
a recent Opinion of the Oregon Attorney General, rights obtained under Measure 37 are personal
to the present property owner. Assuming an owner, having obtained the necessary "waivers"
from the County and the State, could divide the property, future owners would, according to the
Attorney General, be precluded from using the property in a manner inconsistent with land use
regulations in effect at the time of the transfer. Thus, the amount of reduction in value asserted
by the Claimant may be unreliable, if the resulting lots are unusable by future owners, based on
their having to comply with zoning regulations in place when such future owners acquire the
property. If Claimant could have obtained approval of a division of the property on the date he
first acquired an interest in the property, but not under zoning restrictions adopted after
Claimant's acquisition date, and the resulting lots are fully marketable and useable by future
owners, then the value of Claimant's property for Measure 37 purposes would be reduced.
Consistent with the County's procedural ordinance, Chapter 14.10, this report takes no position
on whether a waiver obtained by a claimant and any resulting development approval are fully
transferable with the property.
Effect of County Waiver - Measure 37 clearly allows the County to waive its non exempt land use
regulations only back to the date the current owners, not family members, acquired the property:
"(8) Notwithstanding any other state statute or the availability of funds under
subsection (10) of this act, in lieu of payment of just compensation under this act,
the governing body responsible for enacting the land use regulation may modify,
remove, or not to apply the land use regulation or land use regulations to allow
Page 3 of 4 - Exhibit A - Order No. 2007-111
the property owner to use the property for a use permitted at the time the owner
acquired the propertV. (emphasis added)
11(c) "Owner" is the present owner of the property, or any interest therein. "
In this case, Leslie Harris has continuously owned an interest in the property since 1969. A claimant who
receives a waiver must use the current process to seek the needed permits based on the zoning in place
at the time the current owner acquired the property. Except in a rare case, the current procedural
requirements for handling permits are not regulations that reduce value. Therefore, the County's
procedural regulations are not waived.
Conclusion and Recommendation
The present owner of the property have submitted a claim pursuant to Measure 37 which demonstrates
eligibility for his use of the subject property based on nonexempt land use regulations in effect on
November 27, 1969, the date when Claimant first acquired an interest in the property. There is evidence
in the record that a land division of the subject property would be feasible.
My recommendation is that the Board approve a waiver in the form of Order attached. This Order would
have the effect of waiving the nonexempt County land use regulations which were not in effect until after
November 27, 1969, to allow the Claimant to use the property in a manner permitted at the time he
acquired the property. This waiver is not a development permit. By granting a waiver, the County does not
commit itself to approving Claimants' desired permit.
Cautionary Note on Measure 37
Claimants should understand that a decision by Deschutes County may not enable them to proceed with
future development or construction unless the State of Oregon approves a waiver of applicable State land
use regulations. Claimants who wish to obtain information relative to their "State" claims under Measure
37 are advised to contact the State Department of Land Conservation and Development and the
Department of Administrative Services.
Page 4 of 4 - Exhibit A - Order No. 2007-111
The southwest quarter of the northeast quarter of the northwest quarter of
Section 9, Township 20 South, Range 15 East of the Willamette Meridian
EXHIBIT B